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My AccountChapter 49
- 49.1 Definition of “Intoxication”
- 49.2 Definition of “Motor Vehicle”
- 49.3 Definition of “Operate”
- 49.4 “Synergistic Effect” Instruction
- 49.5 “No Defense” Instruction
- 49.6 “No Culpable Mental State Requirement” Instruction
- 49.7 “Refusal” Instruction
- 49.8 Limited Use of Breath Test Evidence
- 49.9 “Involuntary Intoxication” Defense Instruction
- 49.10 Necessity Defense Instruction
- 49.11-49.15 Reserved
- 49.16 Instruction—Misdemeanor Driving While Intoxicated (with Necessity Defense)
- 49.17 Instruction—Driving While Intoxicated with Child Passenger
- 49.18 Instruction—Misdemeanor Flying While Intoxicated
- 49.19 Instruction—Misdemeanor Boating While Intoxicated
- 49.20 General Comments on Felony Enhanced Offenses
- 49.21 Instruction—Felony Driving While Intoxicated (Two Prior DWI Convictions)
- 49.22 Instruction—Felony Driving While Intoxicated (Prior Intoxication Manslaughter Conviction)
- 49.23 General Comments on Death or Injury Intoxication Offenses—Causation
- 49.24 Instruction—Intoxication Manslaughter
- 49.25 Instruction—Intoxication Assault
Comment
The Texas Transportation Code provides that “[a] person’s refusal of a request by an officer to submit to the taking of a specimen of breath or blood, whether the refusal was express or the result of an intentional failure to give the specimen, may be introduced into evidence at the person’s trial.” Tex. Transp. Code § 724.061.
Until Bartlett v. State, 270 S.W.3d 147 (Tex. Crim. App. 2008), there was some question whether in a driving while intoxicated trial the instructions could inform the jury of the substance of the statutory provision.
In Bartlett, the court of criminal appeals—applying the statutory prohibition against comments on the evidence—held that a trial judge erred in giving the following instruction:
You are instructed that where a defendant is accused of violating Chapter 49.04, Texas Penal Code, it is permissible for the prosecution to offer evidence that the defendant was offered and refused a breath test, providing that he has first been made aware of the nature of the test and its purpose. A Defendant under arrest for this offense shall be deemed to have given consent to a chemical test of his breath for the purpose of determining the alcoholic content of his blood.
The prosecution asks you to infer that the defendant’s refusal to take the test is a circumstance tending to prove a consciousness of guilt. The defense asks you to reject the inference urged by the prosecution and to conclude that because of the circumstances existing at the time of the defendant’s refusal to take such test, you should not infer a consciousness of guilt.
The fact that such test was refused is not sufficient standing alone, and by itself, to establish the guilt of the Defendant, but is a fact which, if proven, may be considered by you in the light of all other proven facts in deciding the question of guilt or innocence. Whether or not the Defendant’s refusal to take the test shows a consciousness of guilt, and the significance to be attached to his refusal, are matters for your determination.
Bartlett, 270 S.W.3d at 149.
Judge Johnson joined the opinion of the court, reasoning that the second and third paragraphs of the instruction impermissibly “drew attention to the refusal and were likely to have enhanced the apparent importance of it as evidence of guilt.” Bartlett, 270 S.W.3d at 155 (Johnson, J., concurring).
In fact, however, the reasoning of the Bartlett majority would have applied even if the trial judge had limited the instruction to the first of its three paragraphs. The opinion of the court acknowledged this when it summarized: “. . . we hold that a jury instruction informing the jury that it may consider evidence of a refusal to take a breath test constitutes an impermissible comment on the weight of the evidence.” Bartlett, 270 S.W.3d at 154.
The Committee concluded that, under Bartlett, any instruction on admitted evidence of the defendant’s refusal to submit to the taking of a blood or breath sample is impermissible. Consequently, the Committee’s proposed instructions do not include such a provision.